[G.R. No. 120193.

March 6, 1996]
LUIS MALALUAN, petitioner, vs. COMMISSION ON ELECTIONS and JOSEPH
EVANGELISTA, respondents.
D E C I S I O N
HERMOSISIMA, JR., J .:
Novel is the situation created by the decision of the Commission on Elections
which declared the winner in an election contest and awarded damages, consisting of
attorneys fees, actual expenses for xerox copies, unearned salary and other emoluments
for the period, from March, 1994 to April, 1995, en masse denominated as actual
damages, notwithstanding the fact that the electoral controversy had become moot and
academic on account of the expiration of the term of office of the Municipal Mayor of
Kidapawan, North Cotabato.
Before us is a petition for certiorari and prohibition, with a prayer for the issuance
of a temporary restraining order and writ of preliminary injunction, seeking the review of the
decision en banc[1] of the Commission on Elections (COMELEC) denying the motion for
reconsideration of the decision[2] of its First Division,[3] which reversed the decision[4] of
the Regional Trial Court[5] in the election case[6] involving the herein parties. While the
Regional Trial Court had found petitioner Luis Malaluan to be the winner of the elections
for the position of Municipal Mayor of Kidapawan, North Cotabato, the COMELEC, on the
contrary, found private respondent Joseph Evangelista to be the rightful winner in said
elections.
Petitioner Luis Malaluan and private respondent Joseph Evangelista were both
mayoralty candidates in the Municipality of Kidapawan, North Cotabato, in the
Synchronized National and Local Elections held on May 11, 1992. Private respondent
Joseph Evangelista was proclaimed by the Municipal Board of Canvassers as the duly
elected Mayor for having garnered 10,498 votes as against petitioners 9,792
votes. Evangelista was, thus, said to have a winning margin of 706 votes. But, on May
22, 1992, petitioner filed an election protest with the Regional Trial Court contesting 64 out
of the total 181 precincts of the said municipality. The trial court declared petitioner as the
duly elected municipal mayor of Kidapawan, North Cotabato with a plurality of 154
votes. Acting without precedent, the court found private respondent liable not only for
Malaluans protest expenses but also for moral and exemplary damages and attorneys
fees. On February 3, 1994, private respondent appealed the trial court decision to the
COMELEC.
Just a day thereafter that is, on February 4, 1994, petitioner filed a motion for
execution pending appeal. The motion was granted by the trial court, in an order, dated
March 8, 1994, after petitioner posted a bond in the amount of P500,000.00. By virtue of
said order, petitioner assumed the office of MunicipaJ Mayor of Kidapawan, North
Cotabato, and exercised the powers and functions of said office. Such exercise was not for
long, though. In the herein assailed decision adverse to Malaluans continued governance
of the Municipality of Kidapawan, North Cotabato, the First Division of the Commission on
Elections (COMELEC) ordered Malaluan to vacate the office, said division having found
and so declared private respondent to be the duly elected Municipal Mayor of said
municipality. The COMELEC en banc affirmed said decision.
Malaluan filed this petition before us on May 31, 1995 as a consequence.
It is significant to note that the term of office of the local officials elected in the
May, 1992 elections expired on June 30, 1995. This petition, thus, has become moot and
academic insofar as it concerns petitioners right to the mayoralty seat in his municipality[7]
because expiration of the term of office contested in the election protest has the effect of
rendering the same moot and academic.[8]
When the appeal from a decision in an election case has already become moot,
the case being an election protest involving the office of mayor the term of which had
expired, the appeal is dismissible on that ground, unless the rendering of a decision on the
merits would be of practical value.[9] This rule we established in the case of Yorac vs.
Magalona[10] which we dismissed because it had been mooted by the expiration of the
term of office of the Municipal Mayor of Saravia, Negros Occidental. This was the object of
contention between the parties therein. The recent case of Atienza vs. Commission on
Elections,[11] however, squarely presented the situation that is the exception to that rule.
Comparing the scenarios in those two cases, we-explained:
Second, petitioners citation of Yorac vs. Magalona as authority for his main proposition is grossly
inappropriate and misses the point in issue. The sole question in that case centered on an election
protest involving the mayoralty post in Saravia, Negros Occidental in the general elections of 1955,
which was rendered moot and academic by the expiration of the term of office in December, 1959 It
did not involve a monetary award for damages and other expenses incurred as a result of the
election protest. In response to the petitioners contention that the issues presented before the court
were novel and important and that the appeal should not be dismissed, the Court held - citing the
same provision of the Rules of Court upon which petitioner staunchly places reliance - that a
decision on the merits in the case would have no practical value at all, and forthwith dismissed the
case for being moot. That is not the case here. In contradistinction to Yorac, a decision on the
merits in the case at bench would clearly have the practical value of either sustaining the monetary
award for damages or relieving the private respondent from having to pay the amount thus
awarded.[12]
Indeed, this petition appears now to be moot and academic because the herein
parties are contesting an elective post to which their right to the office no longer
exists. However, the question as to damages remains ripe for adjudication. The
COMELEC found petitioner liable for attorneys fees, actual expenses for xerox copies,
and unearned salary and other emoluments from March, 1994 to April, 1995, en mUsse
denominated as actual damages, default in payment by petitioner of which shall result in
the collection of said amount from the bond posted by petitioner on the occasion of the
grant of his motion for execution pending appeal in the trial court. Petitioner naturally
contests the propriety and legality of this award upon private respondent on the ground
that said damages have not been alleged and proved during trial.
What looms large as the issue in this case is whether or not the COMELEC
gravely abused its discretion in awarding the aforecited damages in favor of private
respondent.
The Omnibus Election Code provides that actual or compensatory damages may
be granted in all election contests or in quo warranto proceedings in accordance with
law.[13] COMELEC Rules of Procedure provide that in all election contests the Court
may adjudicate damages and attorneys fees as it may deem just and as established by
the evidence if the aggrieved party has included such claims in his pleadings.[14] This
appears to require only that the judicial award of damages be just and that the same be
borne out by the pleadings and evidence. The overriding requirement for a valid and
proper award of damages, it must be remembered, is that the same is in accordance with
law, specifically, the provisions of the Civil Code pertinent to damages.
Article 2199 of the Civil Code mandates that except as provided by law or by
stipulation, one is entitled to an adequate compensation only for such pecuniary loss
suffered by him as he has duly proved. Such compensation is referred to as actual or
compensatory damages. The Civil Cod.e further prescribes the proper setting for
allowance of actual or compensatory damages in the following provisions:
ART. 2201. In contracts and quasi-contracts, the damages for which the obligor who acted in good
faith is liable shall be those that are the natural and probable consequences of the breach of the
obligation, and which the parties have foreseen or could have reasonably foreseen at the time the
obligation was constituted.
In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all
damages which may be reasonably attributed to the non-performance of the obligation.
ART. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages which are the
natural and probable consequences of the act or omission complained of. It is not necessary that
such damages have been foreseen or could have reasonably been foreseen by the defendant.
Considering that actual or compensatory damages are appropriate only in
breaches of obligations in cases of contracts and quasi-contracts and on the - occasion of
crimes and quasi-delicts where the defendant may be held liable for all damages the
proximate cause of which is the act or omission complained of, the monetary claim of a
party in an election case must necessarily be hinged on either a contract or a quasi-
contract or a tortious act or omission or a crime, in order to effectively recover actual or
compensatory damages.[15] In the absence of any or all of these, the claimant must be
able to point out a specific provision of law authorizing a money claim for election protest
expenses against the losing party.[16] For instance, the claimant may cite any of the
following provisions of the Civil Code under the chapter on human relations, which
provisions create obligations not by contract, crime or negligence, but directly by law:
ART. 19. Every person must in the exercise of his rights and in the performance of his duties, act
with justice, give everyone his due, and observe honesty and good faith.
ART. 20. Every person who, contrary to law, willfully or negligently causes damage to another,
shall indemnify the latter for the same.
xxx xxx xxx
ART. 32. Any public officer or employee, or any private individual, who directly or indirectly
obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and
liberties of another person shall be liable to the latter for damages:
xxx xxx xxx
(5) Freedom of suffrage;
xxx xxx xxx
In any of the cases referred to in this article, whether or not the defendants act or omission
constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and
distinct civil action for damages, and for other relief. x x x[17]
Claimed as part of the damages to which private respondent is allegedly entitled
to, is P169,456.00 constituting salary and other emoluments from March, 1994 to April,
1995 that would have accrued to him had there not been an execution of the trial courts
decision pending appeal therefrom in the COMELEC.
The long-standing rule in this jurisdiction is that notwithstanding his subsequent
ouster as a result of an election protest, an elective official who has been proclaimed by
the COMELEC as winner in an electoral contest and who assumed office and entered into
the performance of the duties of that office, is entitled to the compensation, emoluments
and allowances legally provided for the position.[18] We ratiocinated in the case of
Rodriguez vs. Tan that:
This is as it should be. This is in keeping with the ordinary course of events. This is simple
justice. The emolument must go to the person who rendered the service unless the contrary is
provided. There is no averment in the complaint that he is linked with any irregularity vitiating his
election. This is the policy and the rule that has been followed consistently in this jurisdiction in
connection with positions held by persons who had been elected thereto but were later ousted as a
result of an election protest. The right of the persons elected to compensation during their
incumbency has always been recognized. We cannot recall of any precedent wherein the contrary
rule has been upheld.[19]
In his concurring opinion in the same case, however, Justice Padilla equally stressed that,
while the general rule is that the ousted elective official is not obliged to reimburse the
emoluments of office that he had received before his ouster, he would be liable for
damages in case he would be found responsible for any unlawful or tortious acts in relation
to his proclamation. We quote the pertinent portion of that opinion for emphasis:
Nevertheless, if the defendant, directly or indirectly, had committed unlawful or tortious acts
which led to and resulted in his proclamation as senator-elect, when in truth and in fact he was not
so elected, he would be answerable for damages. In that event the salary, fees and emoluments
received by or paid to him during his illegal incumbency would be a proper item of recoverable
damage.[20]
The criterion for ajustifiable award of election protest expenses and salaries and
emoluments, thus, remains to be the existence of a pertinent breach of obligations arising
from contracts or quasi-contracts, tortious acts, crimes or a specific legal provision
authorizing the money claim in the context of election cases. Absent any of these, we
could not even begin to contemplate liability for damages in election cases, except insofar
as attorneys fees are concerned, since the Civil Code enumerates the specific instances
when the same may be awarded by the court.
ART. 2208. In the absence of stipulation, attorneys fees and expenses of litigation, other than
judicial costs, cannot be recovered, except:
(1) When exemplary damages are awarded;
(2) When the defendants act or omission has compelled the plaintiff to litigate with third persons or
to incur expenses to protect his interest;
(3) In criminal cases of malicious prosecution against the plaintiff;
(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;
(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiffs
plainly valid, just and demandable claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of household helpers, laborers and skilled workers;
(8) In actions for indemnity under workmens compensation and employers liability laws;
(9) In a separate civil action to recover civil liability arising from a crime;
(10) When at least double judicial costs are awarded;
(11) In any other case where the court deems it just and equitable that attorneys fees and expenses
of litigation should be recovered.[21]
Given the aforecited laws, and jurisprudence on the matter at issue, let us now
look into the basis of respondent COMELEC for awarding actual damages to private
respondent in the form of reimbursement for attorneys fees, actual expenses for xerox
copies, and salary and other emoluments that should have accrued to him from March,
1994 to April, 1995 had the RTC not issued an order for execution pending appeal.
The First Division of the COMELEC ruled on private respondents claim for actual
or compensatory damages in this wise:
x x x under the present legal setting, it is more difficult than in the past to secure an award of
actual or compensatory damages either against the protestant or the protestee because of the
requirements of the law.
In the instant case, however, We are disposed to conclude that the election protest
filed by the protestant is clearly unfounded. As borne out by the results of the appreciation
of ballots conducted by this Commission, apparently the protest was filed in bad faith
without sufficient cause or has been filed for the sole purpose of molesting the protestee-
appellant for which he incurred expenses. The erroneous ruling of the Court which
invalidated ballots which were clearly valid added more injury to the protestee-
appellant. This would have been bearable since he was able to perfect his appeal to this
Commission. The final blow, however, came when the Court ordered the execution of
judgment pending appeal which, from all indications, did not comply with the requirements
of Section 2, Rule 39 of the Rules of Court. There was no good and special reason at all
to justify the execution ofjudgment pending appeal because the protestees winning margin
was 149 votes while that of the protestant - after the Court declared him a winner - was
only a margin of 154 votes. Clearly, the order of execution of judgment pending appeal
was issued with grave abuse of discretion.
For these reasons, protestee-appellant seeks to recover the following:
1. Actual damages representing attorneys fees for the new counsel who handled the Appeal and
the Petition for Certiorari before the Court of Appeals x x x -P3 72, 5 00.00
2. Actual expenses for xerox copying of Appellants Brief and the annexes (14 copies at P 1.50 x x
x -P11,235.00
3. Actual expenses for xerox copying of ballots x x x - P3,919.20
4. Actual damages for loss of salary and other emoluments since March 1994 as per attached
Certification issued by the Municipal Account of Kidapawan x x x - P96,832.00 (up to October
1994 only)
Under Article 2208 of the New Civil Code attorneys fees and expenses of litigation
can be recovered (as actual damages) in the case of clearly unfounded civil action or
proceeding. And, while the case of Eulogio Rodriguez, Sr. vs. Carlos Tan (91 Phil. 724)
disallowed recovery of salaries and allowances (as damages) from elected officials who
were later ousted, under the theory that persons elected has (sic) a right to compensation
during their incumbency, the instant case is different. The protestee-appellant was the one
elected. He was ousted not by final judgment but by an order of execution pending appeal
which was groundless and issued with grave abuse of discretion. Protestant-appellee
occupied the position in an illegal manner as a usurper and, not having been elected to the
office, but merely installed through a baseless court order, he certainly had no right to the
salaries and emoluments of the office.
Actual damages in the form of reimbursement for attorneys fees (P3 72,500.00),
actual expenses for xerox copies (P15,154.00), unearned salary and other emoluments
from March 1994 to April 1995 or 14 months at P12,104.00 a month (P169,456.00),
totalled P557,110.00. To (sic) this amount, however, P3 00,000.00 representing that
portion of attorneys fees denominated as success fee must be deducted this being
premised on a contingent event the happening of which was uncertain from the
beginning. Moral damages and exemplary damages claimed are, of course, disallowed
not falling within the purview of Section 259 of the Omnibus Election Code.
It goes without saying that if the protestant-appellee fails to pay the actual
damages of P257,110.00, the amount will be assessed, levied and collected from the bond
of P500,000.00 which he put up before the Court as a condition for the issuance of the
order of execution of judgment pending appeal.[22]
Petitioner filed a motion for reconsideration of the aforecited decision on March 29,
1995. The COMELEC en banc, however, did not find any new matter substantial in nature,
persuasive in character or sufficiently provocative to compel reconsideration of said
decision and accordingly affirmed in toto the said decision. Hence, this petition raises,
among others, the issue now solely remaining and in need of final adjudication in view of
the mootness of the other issues anent petitioners right to the contested office the term for
which has already expired.
We have painstakingly gone over the records of this case and we can attribute to
petitioner no breach of contract or quasi-contract; or tortious act nor crime that may make
him liable for actual damages. Neither has private respondent been able to point out to a
specific provision of law authorizing a money claim for election protest expenses against
the losing party. [23]
We find respondent COMELECs reasoning in awarding the damages in question
to be fatally flawed. The COMELEC found the election protest filed by the petitioner to be
clearly unfounded because its own appreciation of the contested ballots yielded results
contrary to those of the trial court. Assuming, ex gratia argumentis, that this is a
reasonable observation not without basis, it is nonetheless fallacious to conclude a
malicious intention on the part of petitioner to molest private respondent on the basis of
what respondent COMELEC perceived as an erroneous ruling of the trial court. In other
words, the actuations of the trial court, after the filing of a case before it, are its own, and
any alleged error on its part does not, in the absence of clear proof, make the suit clearly
unfounded for which the complainant ought to be penalized. Insofar as the award of
protest expenses and attorneys fees are concerned, therefore we find them to have been
awarded by respondent COMELEC without basis, the election protest not having been a
clearly unfounded one under the aforementioned circumstances.
Respondent COMELEC also found the order granting execution of judgment
pending appeal to be defective because of alleged non-compliance with the requirement
that there be a good and special reason[24] to justify execution pending appeal. We,
however, find that the trial court acted judiciously in the exercise of its prerogatives under
the law in issuing the order granting execution pending appeal. First, it should be noted
that the applicability of the provisions of the Rules of Court, relating to execution pending
appeal, has ceased to be debatable after we definitively ruled in Garcia vs. de Jesus[25]
that Section 2, Rule 39 of the Rules of Court, which allows Regional Trial Courts to order
executions pending appeal upon good reasons stated in a special order, may be made to
apply by analogy or suppletorily to election contests decided by them.[26] It is not
disputed that petitioner filed a bond in the amount of P500,000.00 as required under the
Rules of Court.
It is also now a settled rule that as much recognition should be given to the value
of the decision of a judicial body as a basis for the right to assume office as that given by
law to the proclamation made by the Board of Canvassers.[27]
x x x Why should the proclamation by the board of canvassers suffice as basis of the right to
assume office, subject to future contingencies attendant to a protest, and not the decision of a court
of justice? Indeed x x x the board of canvassers is composed of persons who are less technically
prepared to make an accurate appreciation of the ballots, apart from their being more apt to yield
extraneous considerations x x x the board must act summarily, practically raising (sic) against time,
while, on the other hand, the judge has the benefit of all the evidence the parties can offer and of
admittedly better technical preparation and background, apart from his being allowed ample time
for conscientious study and mature deliberation before rendering judgment x x x.[28]
Without evaluating the merits of the trial courts actual appreciation of the ballots
contested in the election protest, we note on the face of its decision that the trial court
relied on the findings of the National Bureau of Investigation (NBI) handwriting experts
which findings private respondent did not even bother to rebut. We thus see no reason to
disregard the presumption of regularity in the performance of official duty on the part of the
trial court judge. Capping this combination of circumstances which impel the grant of
immediate execution is the undeniable urgency involved in the political situation in the
Municipality of Kidapawan, North Cotabato. The appeal before the COMELEC would
undoubtedly cause the political vacuum in said municipality to persist, and so the trial court
reasonably perceived execution pending appeal to be warranted and justified. Anyway,
the bond posted by petitioner could cover any damages suffered by any aggrieved
party. It is true that mere posting of a bond is not enough reason to justify execution
pending appeal, but the nexus of circumstances aforechronicled considered together and
in relation to one another, is the dominant consideration for the execution pending
appeal.[29]
Finally, we deem the award of salaries and other emoluments to be improper and
lacking legal sanction. Respondent COMELEC ruled that inapplicable in the instant case
is the ruling in Rodriguez vs. Tan[30] because while in that case the official ousted was the
one proclaimed by the COMELEC, in the instant case, petitioner was proclaimed winner
only by the trial court and assumed office by virtue of an order granting execution pending
appeal. Again, respondent COMELEC sweepingly concluded, in justifying the award of
damages, that since petitioner was adjudged the winner in the elections only by the trial
court and assumed the functions of the office on the strength merely of an order granting
execution pending appeal, the petitioner occupied the position in an illegal manner as a
usurper.
We hold that petitioner was not a usurper because, while a usurper is one who
undertakes to act officially without any color of right,[31] the petitioner exercised the duties
of an elective office under color of election thereto.[32] It matters not that it was the trial
court and not the COMELEC that declared petitioner as the winner, because both, at
different stages of the electoral process, have the power to so proclaim winners in electoral
contests. At the risk of sounding repetitive, if only to emphasize this point, we must
reiterate that the decision of a judicial body is no less a basis than the proclamation made
by the COMELEC-convened Board of Canvassers for a winning candidates right to
assume office, for both are undisputedly legally sanctioned. We deem petitioner, therefore,
to be a de facto officer who, in good faith, has haa possession of the office and had
discharged the duties pertaining thereto[33] and is thus legally entitled to the emoluments
of the office.[34]
To recapitulate, Section 259 of the Omnibus Election Code only provides for the
granting in election cases of actual and compensatory damages in accordance with
law. The victorious party in an election case cannot be indemnified for expenses which he
has incurred in an electoral contest in the absence of a wrongful act or omission or breach
of obligation clearly attributable to the losing party. Evidently, if any damage had been
suffered by private respondent due to the execution ofjudgment pending appeal, that
damage may be said to be equivalent to damnum absque injuria, which is, damage without
injury, or damage or injury inflicted without injustice, or loss or damage without violation of
a legal right, or a wrong done to a man for which the law provides no remedy.[35]
WHEREFORE, the petition for certiorari is GRANTED. While we uphold the
COMELEC decision dated May 5, 1995 that private respondent Joseph Evangalista is the
winner in the election for mayor of the Municipality of Kidapawan, North Cotabato, that
portion of the decision is deemed moot and academic because the term of office for mayor
has long expired. That portion of the decision awarding actual damages to private
respondent Joseph Evangelista is hereby declared null and void for having been issued in
grave abuse of discretion and in excess of jurisdiction.
SO ORDERED.


















G.R. No. L-39632 November 15, 1989
APOLONIO G. MALENIZA, petitioner, vs. COMMISSION ON AUDIT, respondent.
PARAS, J .:
The only issue in this case is whether or not an elective official may be entitled, in the
event that he be separated from the service, to the commutation of his vacation and sick
leave.
The petitioner, Apolonio G. Maleniza, was twice elected Provincial Governor of Camarines
Sur, and he served his term of office from 1960-1967. He, however, lost in his reelection
bid in the 1967 elections.
In 1972, he filed an application for the commutation of his alleged accumulated vacation
and sick leave effective January 1, 1968 to December 11, 1968, or for a total of 160 days.
The respondent Commission on Audit denied the application ruling in part, as follows:
As may be seen in the aforementioned GAO Provincial Circular No. 24, the Secretary of
Justice has already opined that only appointive officials and employees of the government
fall within the intendment of the provisions of Section 286 of the Revised Administrative
Code; that it was not the legislative intent, in enacting Sections 284 and 285 of the same
Code, to extend leave privilege to non-appointive employees; and that the Manuel case,
supra, may not be cited as binding and applicable precedent in the adjudication of claims
of any and all elective officials for the commutation of vacation and sick leave. It may be
mentioned, in this connection, that the aforecited opinion of the Secretary of Justice has
invariably been adopted by this Commission and cited as basis for its decisions on similar
claims filed by elective officials. It bears noting that subsequent actions taken by the Civil
Service Commission and the Supreme Court in similar cases tend to sustain and uphold
such decisions. Thus, in the case of former Congressman Lucas Paredes, the Acting
Commissioner of Civil Service signified his acquiescence to the stand taken by this
Commission that in the absence of a provision of law explicitly granting leave privileges to
the members of Congress, Mr. Paredes' claim for commutation of his alleged vacation and
sick leave credits may not be favorably acted upon. And in the cases of former Councilor
Esteban Resales of Naga City and former Vice-Mayor Mateo V. Tupaz of Butuan City, their
respective petitions for review of the decision of this Commission disallowing their similar
claims were denied by the Supreme Court for lack of merit in its Resolutions dated March
15, 1974 and February 5, 1974, respectively. (Esteban Rosales v. Commission on Audit,
G.R. No. L-37777 Mateo v. Tupaz vs. Commission on Audit G.R. No. 37959). In effect,
therefore, the Supreme Court struck down as worthless the proposition that elective
officials are embraced within the coverage of the Leave Law (Sec. 284, et seq., Revised
Adm. Code) and that the Manuel decision favorably applies to their claim for commutation
of their alleged leave.
Upon all the foregoing premises, it is regretted that your aforesaid claim has to be, as it is
hereby, denied. (Rollo, pp. 40-41)
From the aforesaid ruling, petitioner filed a motion for reconsideration. The same was
denied by respondent Commission ruling that
With respect to the Manuel case, supra, it is, as it has been, the considered view of this
Commission that the said case may not, for audit purpose, be used as the sole basis of
claims for commutation of leave by elective officials. By itself alone, the case is inadequate
to support claims of this nature. For, apart and aside from it, there are other audit
requirements that must needs be met by the claimant. Such a stand finds support in the
aforecited opinion of the Secretary of Justice to the effect that the Manuel case may not be
cited as binding and applicable precedent in the adjudication of claims of any and all
elective officials for the commutation of vacation and sick leave. In other words, an elective
official claiming leave commutation cannot rely solely on the Manuel case; he must first
show indubitably under what provision of law he has earned and accumulated leave before
he can be entitled to the commutation thereof, whereupon he need not even invoke the
Manuel decision een, the considered view of this Commission that the said case may not,
for his right to such commutation would become a matter of law. (p. 44, Rollo)
Hence, this petition.
Petitioner contends that the decision of the Commission on Audit is not in accord with the
decision of this Court in the case of Benito C. Manuel vs. Gen. Auditing Office (L-28952,
Dec. 29, 1971, 42 SCRA 660).
The petition is without merit. Consequently, the same must be dismissed.
In this jurisdiction, the granting and enjoyment of leave of absence of government officers
and employees are governed by Chapter 13, entitled Leave Law, of the Revised
Administrative Code. Specifically mentioned therein as entitled to leave privileges are
justices of the Supreme Court and the Court of Appeals, judges, teachers and, in general,
employees of the national, provincial, city and municipal governments. Leave is based on
attendance in accordance with the forty hours-a-week law to give respite when needed
and without loss of pay to officers and employees whose hours of work are fixed. Thus,
part-time officers and employees are not entitled to leave. (Sec. 15, Rule XVI, Revised
Civil Service Rules)
There is no question that justices, judges and teachers are appointive officers and
employees. There are reasons to believe, however, that the other employees referred to in
the Leave Law are likewise appointive employees of the national and local governments.
Firstly, Section 286 of the Revised Administrative Code, as amended, which provides
when vacation and sick leave may be taken, speaks, in its second proviso, of the
commutation of the salary during the vacation and sick leave of any appointed officer or
employee, etc. Mention may be made, in this connection, of the fact that prior to the
amendment of this section by Republic Act No. 611 the underlined phrase was worded as
follows: "any permanently appointed officer or employee," thus strongly indicating the
legislative intent that whether before or after such amendment, only appointive officers of
employees are covered by the provisions of said section. Secondly, under Section 284 of
the same Code, employees may be granted leave privileges only after six months'
continuous, faithful and satisfactory service. This six-month period obviously pertains to
the probationary period of six months referred to in the Civil Service Law which appointive
employees must serve following their appointment in order that they may acquire
permanent status [Sec. 24(b) RA 2260, as amended], a requirement which does not apply
to elective officials who serve for a fixed term commencing upon their assumption of office
without regard to their status.
The Manuel case resolved affirmatively the issue of whether or not an elective official, is
this case, a Municipal Mayor, may be entitled, in the event of voluntary retirement or
separation from the service thru no fault of his own, to the commutation of vacation and
sick leave. This ruling was anchored on the following statutory provisions:
(a) Section 286 of the Revised Administrative Code, as amended by Republic Act 1081,
which provides that "vacation and sick leave shall be cumulative and any part thereof
which may not be taken within the calendar year in which earned may be carried over the
succeeding year but whenever any officer, employee or laborer of the Government of the
Philippines shall voluntarily resign or be separated from the service thru no fault of his own
he shall be entitled to the commutation of all accumulated vacation and sick leave to his
credit: Provided, that the total vacation leave and sick leave that can accumulate to the
credit of any officer of employee shall, in no case, exceed 10 months ... "; and
(b) Section 12(c) of Commonwealth Act 186 as inserted by Republic Act 1616 and
amended by Republic Act 4968, which allows the retirement of any official or employee,
appointive or elective, regardless of age and employment status, who has rendered a total
of at least twenty (20) years, and the cumulation of his unused vacation and sick leave
based on the highest rate received which he may have to his credit at the time of his
retirement under the cited act.
But a reading of Section 286 will reveal that the provision is intended only to cover
appointive officers, employees, teachers or laborers of the government. Section 12(c) of
Commonwealth Act 186, as inserted by Republic Act 1616 was amended by Republic Act
4968 on June 17, 1967. It was only on this date that retirement benefits were extended to
elective officials. However, the extension of retirement benefits in favor of elective officials
does not automatically entitle the latter to the commutation of "unused vacation and sick
leave" since such privilege would depend on the existence of a law expressly granting
elective officials leave privileges. This is evident from the last sentence of Section 12(c) of
Commonwealth Act 186, as amended, which reads as follows:
Officials and employees under this Act shall be entitled to the Commutation of the unused
vacation and sick leave, based on the highest rate received, which they may have to their
credit at the time of their retirement.
In other words, before a retiring official or employee may be entitled to commutation of his
vacation and sick leave which he may have to his credit at the time of his retirement, he
must first show entitlement to such leave credit because in the absence of such
entitlement, he enjoys no such right of commutation for there is nothing to commute. There
must be a law authorizing such privilege. But there is no such statutory authority insofar as
elective officials are concerned except Sec. 2187 which authorizes sick leave of mayors
only. The petitioner in the case at bar, who was a provincial governor is not covered. The
reason is obvious. If it were the intention of the law to authorize accumulation of leave to
provincial governors, it could have so easily provided under the chapter governing
provincial governors. The absence of any such authority gives rise to only one conclusion
and that is, that all elective officials, with the exception of municipal mayors, are not
entitled to commutation of leave privileges since there is no law authorizing said elective
officials to earn and accumulate leave credits. The Manuel case, therefore, does not apply
in this case, because Manuel was a Municipal Mayor.
Another consideration which argues against the inclusion of elective officers among those
entitled to leave benefit is that they belong to the so-called "exempt service".
Consequently, they are not required or bound to observe the prescribed government office
hours as in the case of appointive officers who are so required under the Civil Service
Rules which were promulgated by the Commissioner of Civil Service to implement the Civil
Service Law in the exercise of his rule-making power. (Sec. 16, Ibid.; Rule XV, Civil
Service Rules). Thus, as a general proposition, their entitlement to salary is not dependent
upon actual attendance in office. In fact, they are not even required to keep a record of
their daily attendance such as by accomplishing Form No. 48 (Daily Time Record) or
punching the bundy clock. So, whether or not absent from office, their right to receive
salary is not adversely affected.
WHEREFORE, the petition is DISMISSED and the decision/ruling of respondent
Commission on Audit is AFFIRMED.
SO ORDERED.


































[G.R. No. 118605. April 12, 2000]
EDGARDO MANCENIDO FOR HIMSELF AND OTHER TEACHERS OF CAMARINES
NORTE HIGH SCHOOL, petitioners, vs. COURT OF APPEALS, THE PROVINCIAL
BOARD, PROVINCIAL SCHOOL BOARD, PROVINCIAL GOVERNOR, PROVINCIAL
TREASURER AND PROVINCIAL AUDITOR, ALL OF THE PROVINCE OF CAMARINES
NORTE, respondents.
R E S O L U T I O N
QUISUMBING, J .:
This is a petition for review of the decision dated October 17, 1994, by the Court of
Appeals in CA-G.R. SP No. 34331, enjoining the partial execution of the judgment dated
December 20, 1993, of the Regional Trial Court (RTC) of Camarines Norte, Branch 38 in
Civil Case No. 5864 entitled "Edgardo Mancenido, et al. v. The Provincial Board, et al. for
mandamus and damages.
The antecedent facts as summarized by the Court of Appeals are as follows: h Y
"On September 6, 1990 private respondent [herein petitioner]
Eduardo Mancenido filed an action for mandamus and
damages with the Regional Trial of Camarines Norte, Branch
38, Daet (docketed as Civil Case No. 5864), against the
petitioners provincial board of Camarines Norte, the school
board, provincial governor, provincial treasurer, and provincial
auditor to pay the teacher's claim for unpaid salary increases.
"On December 19, 1990, petitioners [herein co-respondents]
filed their answer to the complaint.
"On December 20, 1993, the lower court rendered a decision
ordering the Provincial School Board to appropriate and satisfy
plaintiffs claim in the amount of P268,800.00, as unpaid salary
increases.
"On February 21, 1994, petitioners [herein co-respondents]
filed a notice of appeal.
"On February 24, 1994, respondent judge issued an order
giving due course to petitioners appeal.
"On March 1, 1994, private respondents filed a notice of
appeal.
"On the same date, private respondents filed an opposition to
petitioners notice of appeal and a motion for partial execution
of judgment.
"On April 8, 1994, respondent judge issued an order (1)
recalling the order of February 23, 1994, granting the appeal of
petitioners; (2) approving the appeal of private respondents;
and (3) granting their motion for partial execution Sda adsc
"On April 14, 1994, petitioners filed a motion for reconsideration
of the order of April 8, 1994
"On June 1, 1994, respondent judge denied the motion for
reconsideration.".[1]
Dissatisfied with the denial, respondents herein filed a petition for mandamus, prohibition,
and injunction with the Court of Appeals with the prayer, among others, that their notice of
appeal be given due course and the trial court be prohibited from enforcing the partial
execution of its judgment. Said petition was docketed as CA-G.R. SP No. 34331.
Subsequently, the appellate court rendered its decision of October 17, 1994, the
dispositive portion of which reads:
"WHEREFORE, the Court GRANTS the petition for prohibition
and mandamus and hereby orders respondent judge: (1) to
elevate the original record of Civil Case No. 5864 to the Court
of Appeals in due course of appeal; and (2) to desist from the
partial execution of the decision in the case.
"No costs.
"SO ORDERED.".[2]
Petitioners then filed a motion to reconsider the appellate court's decision, which motion
was denied by the Court of Appeals in its resolution dated December 21, 1994.
Hence, the instant petition anchored on the following assignment of errors:
"a. The Court of Appeals has erred in recognizing the authority
of Atty. Jose Lapak to file the subject Notice of Appeal.
"b. The Court of Appeals has erred in recognizing that the
service of a copy of the subject Notice of Appeal upon
Petitioners themselves is valid.
"c. The Court of Appeals has erred in enjoining the partial
execution of the Decision dated December 20, 1993 rendered
by the Trial Court.".[3]
For our resolution now are the following issues: (1) Whether a private counsel may
represent municipal officials sued in their official capacities; and (2) Whether a Notice of
Appeal filed through private counsel and with notice to petitioners and not to their counsel
is valid. Scmis
Anent the first issue, petitioners contend that Atty. Jose Lapak could not represent the
respondents Provincial Treasurer and Provincial School Board, because both are
instrumentalities of the National Government and may be represented only by the Office of
the Solicitor General pursuant to Section 35, Chapter 12, Title 3, Book 4 of the
Administrative Code of 1987. Only the Provincial Prosecutor of Camarines Norte may
represent the Provincial Governor and the Provincial Board in accordance with Section
481 [1], par. B of the Local Government Code of 1991. Petitioners cite Province of Cebu v.
IAC, 147 SCRA 447 (1987), where we held that:
"The municipality's authority to employ a private lawyer is
expressly limited only to situations where the provincial fiscal is
disqualified to represent it (De Guia v. The Auditor General, 44
SCRA 169; Municipality of Bocaue, et al. v. Manotok, 93 Phil.
173; Enriquez, Sr., v. Honorable Gimenez, 107 Phil. 932) as
when he represents the province against a municipality.
"The lawmaker, in requiring that the local government should
be represented in its court cases by a government lawyer, like
its municipal attorney and the provincial fiscal, intended that the
local government should not be burdened with the expenses of
hiring a private lawyer. The lawmaker also assumed that the
interests of the municipal corporation would be best protected if
a government lawyer handles its litigations.".[4]
Petitioners also pray that the Notice of Appeal filed by respondents dated February 18,
1994, be deemed a mere scrap of paper. They claim that it was filed by a lawyer not
authorized to do so. Even granting that Atty. Lapak could represent respondents in filing
the Notice of Appeal, they add, it was not properly served since its copy was sent to
petitioners and not to their counsel of record. They conclude that this error is fatal to their
appeal. For in Riego v. Riego, 18 SCRA 91 (1966), we held:
"[W]here a party appears by attorney in an action or proceeding
in a court of record, all notices thereafter required to be given
therein must be given to the attorney and not to the client, and
a notice given to the client and not to his attorney is not a notice
in law.".[5]
Finally, petitioners point out, since the questioned Notice of Appeal had fatal defects, its
filing did not toll the running of the period for the finality of judgment and petitioners could
still file a motion for partial execution of the judgment.
After considering petitioners' arguments, however, we find their contentions far from
persuasive. x law
Section 481, Article 11, Title V of the Local Government Code (R.A. No. 7160) provides for
the appointment of a legal officer, whose function is:
"(I) Represent the local government unit in all civil actions and
special proceedings wherein the local government unit or any
official thereof, in his official capacity, is a party: Provided, That,
in actions or proceedings where a component city or
municipality is a party adverse to the provincial government or
to another component city or municipality, a special legal officer
may be employed to represent the adverse party;"
The Court has previously ruled on the representation of a local government unit by a
private attorney. In Municipality of Bocaue v. Manotok, 93 Phil, 173 (1953), and
succeeding cases, we held that only when the provincial fiscal is disqualified may the
municipal council be authorized to hire the services of a special attorney. We reiterated
this in De Guia v. Auditor General, 44 SCRA 169 (1972)..[6] In Enriquez, Sr. v. Gimenez,
107 Phil 932 (1960), we enumerated the instances when the provincial public prosecutor is
disqualified from representing a particular municipality, i.e., when the jurisdiction of a case
involving the municipality lies with the Supreme Court, when the municipality is a party
adverse to the provincial government or to some other municipality in the same province,
and when in a case involving the municipality, the provincial prosecutor, his spouse, or his
child is involved as a creditor, heir, legatee, or otherwise.
But do these rulings equally apply to local government officials? In Alinsug v. RTC, Br. 58,
San Carlos City, Negros Occidental, 225 SCRA 559 (1993), we laid down the rule that, in
resolving whether a local government official may secure the services of private counsel in
an action filed against him in his official capacity, the nature of the action and the relief
sought are to be considered. In Albuera v. Torres, 102 Phil. 211 (1957), we approved the
representation by private counsel of a provincial governor sued in his official capacity,
where the complaint contained other allegations and a prayer for moral damages, which, if
due from the defendants, must be satisfied by them in their private capacity. In Province of
Cebu v. Intermediate Appellate Court, supra, we declared that where rigid adherence to
the law on representation would deprive a party of his right to redress for a valid grievance,
the hiring of private counsel would be proper.
The present case had its origins in Civil Case No. 5864 filed before the RTC of Camarines
Norte, Branch 38, for mandamus and damages. Notwithstanding the fact that the trial court
granted mandamus, petitioners appealed to the Court of Appeals since the trial court did
not award damages. In view of the damages sought which, if granted, could result in
personal liability, respondents could not be deemed to have been improperly represented
by private counsel. No error may thus be attributed to the appellate court when it
recognized the right of respondents to be represented by private counsel. Korte
On the second issue, petitioners argue that respondents failed to perfect their appeal since
respondents served a copy of their Notice of Appeal upon petitioners, and not upon their
counsel of record. It is settled that the right to appeal is a mere statutory privilege and may
be exercised only in accordance with the Rules of Court..[7]
Section 1, Rule 49 of the Rules of Court provides:
"Section 1. Pleadings, motions, service of papers and proof
thereof. - Pleadings, motions, filing and service of papers, and
proof thereof, except as otherwise provided, shall be governed
by Rules 7, 8, 9, 13, and 15, in so far as they are not
inconsistent with the provisions of this rule."
Section 2, Rule 13 of the Rules of Court states:
"Section 2. Papers to be filed and served. - Every order
required by its terms to be served, every pleading subsequent
to the complaint, every written motion other than one which
may be heard ex parte, and every written notice, appearance,
demand, offer of judgment or similar papers shall be filed with
the court, and served upon the parties affected thereby. If any
of such parties has appeared by an attorney or attorneys,
service upon him shall be made upon his attorneys or one of
them, unless service upon the party himself is ordered by the
court. Where one attorney appears for several parties, he shall
be entitled only to one copy of any paper served upon him by
the opposite side." (Underscoring supplied).
Pursuant to the aforecited Rules, service of notice when a party is represented by counsel
should be made upon counsel, and not upon the party. The purpose of the rule is to
maintain a uniform procedure calculated to place in competent hands the prosecution of a
party's case..[8] We find petitioners' reliance on Riego proper and to the point..[9]
We find, however, that no error was committed by the Court of Appeals when it ordered
the trial court (a) to elevate the original record of Civil Case No. 5864 and (b) to desist from
any further proceedings in said case. Petitioners did appeal the decision of the trial court to
the appellate court within the reglementary period to perfect an appeal. Once a written
notice of appeal is filed, appeal is perfected and the trial court loses jurisdiction over the
case, both over the record and subject of the case..[10] Missdaa
With respect to the trial court's order of partial execution pending appeal, our view is that it
was properly challenged by respondents in a special civil action..[11] We have held that
the execution of a judgment before becoming final by reason of appeal is allowed, but only
in exceptional cases and only if firmly founded upon good reasons for such execution..[12]
In other words, a judge should state in his special order granting a writ of execution
pending appeal "good reasons" justifying the issuance of said writ..[13] The Court of
Appeals found the order of the judge bereft of such "good reasons." In the absence of
good reasons which would justify execution pending appeal, it became incumbent upon
the reviewing court, to order the elevation of the records of the case in due course, for its
appropriate consideration, otherwise failure to do so might constitute grave abuse of
discretion on its part..[14] To attribute error to the Court of Appeals when it rendered the
assailed decision is to misunderstand the rationale for the action it had taken.
ACCORDINGLY, the instant petition is hereby DENIED and the decision of the Court of
Appeals in CA-G.R. SP No. 34331 AFFIRMED.
SO ORDERED.

















































G.R. No. 87977 March 19, 1990
ILUMINADO URBANO and MARCIAL ACAPULCO, petitioners, vs. FRANCISCO I.
CHAVEZ, RAMON BARCELONA and AMY LAZARO-JAVIER, respondents.
G.R. No. 88578 March 19, 1990
NEMESIO G. CO, petitioner, vs. REGIONAL TRIAL COURT OF PASIG (BRANCH
165), THE OFFICE OF THE SOLICITOR GENERAL and FRANCISCO I. CHAVEZ,
respondents.
Taada Vivo & Tan and Benjamin C. Santos Law Office for petitioner in 88578.

GANCAYCO, J .:
Can the Office of the Solicitor General represent a public officer or employee in the
preliminary investigation of a criminal action against him or in a civil action for damages
against him? This is the principal issue in these two consolidated Petitions.
G.R. No. 87977
Sometime in 1988, the petitioners in G.R. No. 87977, namely, Iluminado Urbano and
Marcial Acapulco, instituted a criminal case against Secretary Luis Santos of the
Department of Local Government as well as Sectoral Representatives Pacifico Conol and
Jason Ocampos, Jr. of the Sangguniang Panlungsod of Tangub City, for alleged violation
of the provisions of Republic Act No. 3019, as amended, otherwise known as the Anti-
Graft and Corrupt Practices Act. The complaint against them was filed with the Office of
the Ombudsman and was docketed as OSP Case No. 88-02780. The Office of the Solicitor
General, through Solicitor General Francisco I. Chavez, Assistant Solicitor General Ramon
A. Barcelona and Solicitor Amy C. Lazaro-Javier, entered its appearance as counsel for
the said respondents as far as the preliminary investigation of the case is concerned.
By way of a special civil action for prohibition filed with this Court, the said petitioners seek
to enjoin the Solicitor General and his associates from acting as counsel for the said
respondents in the course of the preliminary investigation. The said petitioners submit that
in the event that the corresponding information is filed against the said respondents with
the Sandiganbayan and a judgment of conviction is rendered by the said court, the
appearance of the Office of the Solicitor General on behalf of the said respondents during
the preliminary investigation will be in conflict with its role as the appellate counsel of the
People of the Philippines.
In its Comment filed on June 13, 1989, the Office of the Solicitor General manifested that
the issue raised by the petitioners had been squarely resolved in favor of the said Office in
Anti-Graft League of the Philippines, Inc. v. Hon. Ortega
1
and Solicitor General v. Garrido.
2

G.R. No. 88578
On December 29, 1987, the petitioner in G.R. No. 88578, namely, Nemesio G. Co, filed an
Amended Complaint for damages against Solicitor General Francisco I. Chavez, the
Businessworld Publishing Corporation, Raul L. Locsin and one John Doe. The Amended
Complaint was filed with Branch 165 of the Regional Trial Court in Pasig, Metro Manila and
was docketed as Civil Case No. 55379. The Honorable Milagros V. Caguioa was the
presiding judge therein.
In sum, the Amended Complaint alleged, inter alia, that the defendant Chavez knowingly,
willfully and maliciously published and/or caused to be published certain defamatory
imputations against the petitioner in an article which appeared in the December 4, 1987
issue of Business World, a periodical publication in Metro Manila, and that he caused the
publication thereof by way of an interview characterized by bad faith and actual malice.
The petitioner also alleged that the defamatory remarks impute that he was a close
associate of former President Ferdinand Marcos and his daughter Imee Marcos-Manotoc
and that he was involved in some anomalous transactions relating to the funds of the
national government during the time that President Marcos was in office. It appears that at
the time of the publication of the questioned article, Solicitor General Chavez was the
counsel of the Presidential Commission on Good Government (PCGG), the government
agency responsible for the investigation of alleged graft and corrupt practices relating to
the former President, his relatives and his close associates.
On February 11, 1988, the private defendants Businessworld Publishing Corporation and
Raul L. Locsin filed a joint Motion to Dismiss.
On February 12, 1988, the Office of the Solicitor General sought an extension of time to
file the required responsive pleading. On March 14, 1988, the said Office filed a Motion to
Dismiss on behalf of Solicitor General Chavez. Thereafter, the trial court set the case for
oral argument on June 23, 1988.
During the scheduled oral argument, the counsel of the petitioner objected to the
appearance of the Office of the Solicitor General on behalf of Solicitor General Chavez.
The trial court issued an Order suspending the proceedings and instructed the parties to
submit their respective positions on the propriety of the appearance of the said Office for
the Solicitor General himself. The parties complied with the instructions of the trial court.
By way of a Motion seeking the disqualification of the Office of the Solicitor General to act
as counsel of Solicitor General Chavez, the petitioner manifested to the trial court that he
is suing the Solicitor General in his personal capacity for acts which he committed beyond
the scope of his authority and as such he cannot be represented by the said Office in the
civil suit instituted with the trial court.
3

On the other hand, the Office of the Solicitor General manifested that the objection raised
by the petitioner is an afterthought on account of its belated character, and that this
objection notwithstanding, it is authorized to represent any public official even if the said
official is sued in his personal capacity pursuant to the unconditional provisions of
Presidential Decree No. 478 which defines the functions of the said Office, as well as
Executive Order No. 300 issued on July 26, 1987 which made the said office an
independent agency under the Office of the President of the Philippines.
4
In support of this
contention, the said Office cited the pronouncement of this Court in Anti-Graft League of
the Philippines, Inc.
5
The said office also maintained that the cause of action against the
Solicitor General is for acts committed by him in his official capacity, i.e., as legal counsel
of the PCGG under Executive Order No. 14, series of 1986, and that the assailed
actuations of a public official are presumed to have been done in the lawful performance of
his duties.
6
In support thereof, the said Office cited the ruling of this Court in Peralta v.
Firme.
7

In addition to the arguments above, the Office of the Solicitor General argued that public
policy militates against the disqualification of the said Office from representing the Solicitor
General in his capacity as a public official because, if it where the other way around, public
officials will hesitate to perform their official functions for fear of being haled to court by
almost anybody for the purpose of accounting for official acts, not to mention the trouble of
having to hire a private lawyer at his own expense in order to defend himself.
8

The petitioner submitted his Reply thereto, alleging therein, among others, that the
argument of the Solicitor General is untenable inasmuch as the expression of his views by
way of an interview subsequently featured in a newspaper article is not an official function
of the Solicitor General and that the jurisprudence cited by the Office of the Solicitor
General opposes the position it had taken.
9

In an Order dated November 9, 1988, the trial court denied the Motion of the petitioner for
lack of merit.
10
The petitioner sought a reconsideration of the Order. On the other hand,
the Office of the Solicitor General opposed the reconsideration sought by the petitioner.
11

The petitioner filed a Reply to the opposition on the part of the said Office
12
which, in turn,
filed a Rejoinder to the Reply.
13

In another Order dated May 26, 1989, the trial court denied the reconsideration sought by
the petitioner. The pertinent portion of the said Order is as follows
After a careful study, assessment and dissertation of the grounds, arguments advanced by
the parties in their respective pleadings now under consideration, as well as the applicable
laws and jurisprudence cited therein, the Court has arrived at the inescapable conclusion,
and so holds that the plaintiff failed to satisfactorily convince the Court that the Office of the
Solicitor General cannot and/or does not have the authority to represent the defendant
Francisco I. Chavez in this case, for the simple reason that it is indisputable that at the
time said defendant allegedly made the malicious imputations against the plaintiff, he was
then and still is the incumbent Solicitor General, and at the same time the counsel for the
Presidential Commission on Good Government or PCGG.
14

Thus, the Order of the trial court dated May 26, 1989 is challenged before this Court on the
ground that the same amounts to a grave abuse of discretion amounting to lack of
jurisdiction on the part of the trial court.
15
The petitioner now asks the Court to order the
Office of the Solicitor General to desist from representing the Solicitor General in the civil
suit for damages.
On August 21, 1989, the Office of the Solicitor General filed its Comment on the Petition,
reiterating therein its position before the trial court.
16

On August 31, 1989, the Court resolved to consider the said Comment as the Answer to
the Petition and to give due course to the Petition.
17
Nonetheless, on October 4, 1989, the
petitioner filed his Reply to the Comment, reiterating therein his arguments raised before
the trial court.
18

The issue raised in G.R. No. 87977 relates to the authority of the Office of the Solicitor
General to appear for certain government officials in the course of the preliminary
investigation of their case before the Office of the Ombudsman. The issue raised in G.R.
No. 88578 pertains to the authority of the said Office to appear for the Solicitor General
who was haled to court in a civil suit for damages arising from an alleged defamatory
remark which appeared in a newspaper. Both petitioners raise pure questions of law
inasmuch as there are no evidentiary matters to be evaluated by this Court. Moreover, if
the only issue is whether or not the conclusions of the trial court are in consonance with
law and jurisprudence, then the issue is a pure question of law.
19
Thus, the Court resolved
to consolidate both Petitions and to treat them as Petitions for certiorari on pure questions
of law in accordance with the provisions of the Rules of Court.
20
In due time, both Petitions
were deemed submitted for decision.
In resolving both Petitions, the Court must take into account the duties and functions of the
Office of the Solicitor General. Presidential Decree No. 478
21
defines such duties and
functions, to wit
Sec. 1. Functions and Organization. 1) The Office of the Solicitor General shall
represent the Government of the Philippines, its agencies and instrumentalities and its
officials and agents in any litigation, proceeding, investigation or matter requiring the
services of a lawyer. . . (Emphasis supplied)
The Office of the Solicitor General submits that on the basis of this provision, it can
represent or otherwise defend any public official without any qualification or distinction in
any litigation, and that an intepretation thereof to the effect that it is authorized to represent
a public official only when the said official is clearly shown to be sued in his official capacity
is erroneous. In short, the said Office argues that inasmuch as the law does not make a
distinction as to the type of litigation wherein the said Office can enter its appearance as
counsel, there should be no distinction made.
22

A similar provision can be found in Section 1661 of the Revised Administrative Code. It
reads as follows: "As principal law officer of the Government, the Solicitor General shall
have the authority to act for and represent the Government of the Philippine Islands, its
officers and agents in any official investigation, proceeding or matter requiring the services
of a lawyer." Like the cited provision of Presidential Decree No. 478, this provision does
not have any qualifying phrase. The argument of the Office of the Solicitor General as
regards Presidential Decree No. 478 seems to apply to this provision as well. Executive
Order No. 300, series of 1987 cited by the said Office merely reiterates the provisions of
the aforementioned Presidential Decree.
In Anti-Graft League of the Philippines, Inc.,
23
this Court pointed out that the phrase
"official investigation, proceeding or matter requiring the services of a lawyer" found in
Section 1661 of the Revised Administrative Code embraces a preliminary investigation in a
criminal case initiated against a public official considering that the law makes no
qualification as to the nature or character of the "official investigation" contemplated. The
Court emphasized, however, that where the investigation results in an information filed
against the public official concerned, then that official may no longer be represented by the
Office of the Solicitor General and that, accordingly, he will have to get his own private
counsel. Thus, this Court held that the Office of the Solicitor General can represent the
public official at the preliminary investigation of his case, and that if an information is
eventually filed against the said public official, the said Office may no longer represent him
in the litigation. This ruling was reiterated in Solicitor General v. Garrido.
24

What is the rationale behind this rule which allows the Office of the Solicitor General to
represent a public official during the preliminary investigation of his case, and which
prohibits the said office from further representing the said public official when an
information is filed against him with the appropriate court? In Anti-Graft League of the
Philippines, Inc., this Court stressed that in the performance of their duties, public officials
can be subjected to numerous suits, whether ill-founded or not, and that by threats of
possible criminal prosecution, parties adversely affected by official action can stay the
hand of the public official concerned. The Court observed that there may be hesitancy and
diffidence in the execution of their duties if public officials are deterred by the thought that
they could be brought to court and face criminal charges. The Court conluded that as an
assurance against timidity the Office of the Solicitor General sees to it that the public
officials concerned are duly represented by counsel in the preliminary investigation. As to
why the public official concerned may no longer be represented by the Office of the
Solicitor General, the ostensible reason is this: the said Office may no longer represent
him considering that its position as counsel for the accused will be in direct conflict with its
responsibilities as the appellate counsel of the People of the Philippines in all criminal
cases.
The Court believes that the ruling announced in Anti-Graft League of the Philippines, Inc.
and reiterated in Garrido should be re-examined in the light of the nature of a suit against a
public official.
Under the Presidential Decree No. 478 aforecited, the Solicitor General shall represent the
Government of the Philippines, its agencies and instrumentalities and its officials and
agents in any litigation, proceeding, investigation or matter requiring the services of a
lawyer. This is as it should be as he is the principal law officer of the Government.
25

In Anti-Graft League of the Philippines, Inc., this Court interpreted this to embrace "both
civil and criminal investigation, proceeding or matter requiring the services of a lawyer.
26

In Garrido, the Court sustained the authority of the Solicitor General to enter his
appearance on behalf of public officials charged with violating a penal statute for acts
connected with the performance of their official duties.
27

It is undisputed that the Office of the Solicitor General is the appellate counsel of the
People of the Philippines in all criminal cases. As such, the said Office participates in a
criminal case only when the same has reached the appellate courts. It is the office of the
city, provincial or state prosecutor, as the case may be, and not the Office of the Solicitor
General, which attends to the investigation and the prosecution of criminal cases in the
first instance.
However, under the doctrine announced in Anti-Graft League of the Philippines, Inc. and
Garrido, the Office of the Solicitor General is authorized to enter its appearance as counsel
for any public official, against whom a criminal charge had been instituted, during the
preliminary investigation stage thereof. Nevertheless, in the same case, this Court held
that once an information is filed against the public official, the Office of the Solicitor
General can no longer represent the said official in the litigation. The anomaly in this
paradigm becomes obvious when, in the event of a judgment of conviction, the case is
brought on appeal to the appellate courts. The Office of the Solicitor General, as the
appellate counsel of the People of the Philippines, is expected to take a stand against the
accused. More often than not, it does. Accordingly, there is a clear conflict of interest here,
and one which smacks of ethical considerations, where the Office of the Solicitor General
as counsel for the public official, defends the latter in the preliminary investigation stage of
the criminal case, and where the same office, as appellate counsel of the People of the
Philippines, represents the prosecution when the case is brought on appeal. This
anomalous situation could not have been contemplated and allowed by the law, its
unconditional terms and provisions notwithstanding. It is a situation which cannot be
countenanced by the Court.
Otherwise, if the Solicitor General who represents the state on appeal in criminal cases
can appear for the accused public official in a preliminary investigation, then by the same
token a provincial or city fiscal, his assistant or any government prosecutor who represents
the People of the Philippines at the preliminary investigation of a case up to the trial
thereof can appear for an accused public official at the preliminary investigation being
conducted by another fiscal, prosecutor or municipal judge. The situation would simply be
scandalous, to say the least.
There is likewise another reason, as earlier discussed, why the Office of the Solicitor
General cannot represent an accused in a criminal case. Inasmuch as the State can speak
and act only by law, whatever it does say and do must be lawful, and that which is unlawful
is not the word or deed of the State, but is the mere wrong or trespass of those individual
persons who falsely speak and act in its name.
28
Therefore, the accused public official
should not expect the State, through the Office of the Solicitor General, to defend him for a
wrongful act which cannot be attributed to the State itself. In the same light, a public official
who is sued in a criminal case is actually sued in his personal capacity inasmuch as his
principal, the State, can never be the author of a wrongful act, much less commit a crime.
Thus, the Court rules that the Office of the Solicitor General is not authorized to represent
a public official at any stage of a criminal case. For this reason, the doctrine announced in
Anti-Graft League of the Philippines, Inc. v. Hon. Ortega and Solicitor General v. Garrido,
and all decided cases affirming the same; in so far as they are inconsistent with this
pronouncement, should be deemed abandoned. The principle of stare decisis
notwithstanding, it is well-settled that a doctrine which should be abandoned or modified
should be abandoned or modified accordingly. After all, more important than anything else
is that this Court should be right.
29

This observation should apply as well to a public official who is haled to court on a civil suit
for damages arising from a felony allegedly committed by him.
30
Any pecuniary liability he
may be held to account for on the occasion of such civil suit is for his own account. The
State is not liable for the same. A fortiori, the Office of the Solicitor General likewise has no
authority to represent him in such a civil suit for damages.
For all these reasons, the argument of the Office of the Solicitor General to the effect that it
has the authority to represent or otherwise defend any public official without any
qualification or distinction in any litigation pursuant to the unconditional provisions of
Presidential Decree No. 478 and the other cited laws is untenable. Applying these
principles to the case at bar, the Office of the Solicitor General has no authority to
represent Solicitor General Chavez in the civil suit for damages filed against him in the
Regional Trial Court arising from allegedly defamatory remarks uttered by him.
The issues raised in these two Petitions have been resolved on the basis of law and
jurisprudence as well as the pertinent arguments of the parties concerned. The other
points raised by them are irrelevant to the proper disposition of these cases and need not
be considered.
The Court is aware of the possibility of public officials being haled to court in an endless
array of civil suits. With or without this pronouncement, and considering the nature of a
public office in the Philippines vis-a-vis the litigious character of most Filipinos as
demonstrated by the number of cases filed in the courts daily, this scenario is a fact that
must be accepted. The possibility of being brought to court is an occupational hazard of
both the public officer and the citizen, in the same way that every occupation has its own
hazards to reckon with. This grim reality notwithstanding, public officials should know that
nobody is above the law.
Of course, there is the Citizens Legal Aid Office of the Department of Justice that may be
made to assist in the defense of any such public official. As to respondent Francisco I.
Chavez, he may appear in his own defense in his private capacity in the action for
damages against him. The services of private counsel may also be availed of. And if it is
the intention of the State to protect public officials from alleged harassment suits, then the
creation of a separate office of government lawyers for this purpose may be in order. But
certainly the Office of the Solicitor General can not assume a responsibility in defense of
such public officials beyond its statutory authority.
Accordingly, the Court is of the opinion, and so holds that the Office of the Solicitor
General is not authorized to represent a public official at any stage of a criminal case or in
a civil suit for damages arising from a felony. This pronouncement applies to all public
officials and employees in the executive, legislative and judicial branches of the
Government.
WHEREFORE, in view of the foregoing, the herein Petitions are hereby GRANTED. The
Office of the Solicitor General is permanently prohibited from representing the said
respondents in OSP Case No. 88-02780 pending in the Office of the Ombudsman and
respondent Francisco I. Chavez in Civil Case No. 55379 pending before the Regional Trial
Court of Pasig, Metro Manila. No pronouncement as to costs.
SO ORDERED.